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Parties: The Queen (Crown) Chee Er (Offender)

Representation: Counsel M Smith (Crown) T Lee (Offender)

Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)

File Number: SCC 292 of 2021

MOSSOP J:

Introduction

1. The offender, Chee Er, has pleaded guilty to one count of trafficking in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 10 years’ imprisonment, 1000 penalty units or both.

Facts

2. The facts are agreed and are in summary as follows.

3. On 8 February 2021, the offender hired a white Mitsubishi Outlander with an Australian Capital Territory (ACT) registration from Thrifty Car and Truck Rental in Fyshwick. He hired the vehicle for approximately one month.

4. On 17 February 2021, a “Willow Mcrobbie” contacted the offender about “purchasing”. The offender offered to sell one gram for $450 and told Mcrobbie that the product was good for injecting.

5. On 7 March 2021, “jayz” contacted the offender by text message and referred to buying something from the offender and “Ray” for $450. In this correspondence, the offender and jayz agreed that the product was good for injecting.

6. At approximately 10:30pm on 8 March 2021, the offender drove his friend to the Tuggeranong Police Station in the hired Outlander. The offender parked outside the station and waited in the car while his friend went inside. Shortly after, Detective Senior Constable Clarke approached the car and spoke with the offender, who was now standing beside the vehicle. The facts do not disclose why Detective Senior Constable Clarke decided to take this step or upon what information he was acting.

7. At 10:45pm, the offender consented to a police search of the car. The police located a number of clip seal bags and containers containing a white crystalline substance. The police also located other indicia of trafficking including clip seal bags and a small set of digital scales with white crystalline residue.

8. At 11:29pm, the offender was placed under arrest for drug trafficking. His mobile phone and a satchel were seized. $2035 in cash was located inside his wallet found in the satchel.

9. Analysis conducted by the ACT Government Analytical Laboratory confirmed that the substances found inside the Outlander were methylamphetamine. The total weight of the methylamphetamine accepted as attributable to the offender was 21.623 g. An expert report of Detective Sergeant David Flemming assessed the street value of the methylamphetamine in the offender’s possession as between $4324 and $21,623. At the price per gram that the evidence discloses he was selling it, the amount in his possession would be worth approximately $9700. There was no analysis of the purity of the methylamphetamine. However, it was of sufficient purity to be sold for the purposes of injection.

Objective seriousness

10. In assessing the objective seriousness of the offending, an important consideration is the role of the offender in the distribution of drugs. The weight of the amount of the drug is not of chief importance, although it is a relevant factor. The motivation for the offence is highly relevant, the purpose of profit being a more serious matter. These are the principles described in Bui v The Queen [2015] ACTCA 5 at [41]. In the present case, the offender was a user/dealer, having had an addiction to methylamphetamine for approximately six months prior to his arrest. The level of his use of methylamphetamine is not apparent. The Agreed Statement of Facts do not of themselves establish that his motivation for the offending was for financial gain beyond that which was necessary to support his own habit. However, the offender admitted for the purposes of sentencing that he was selling enough in order to support himself in circumstances where his usual employment was not available. Therefore, even though involving some level of profit, it was subsistence-level dealing.

11. The offending is in the low to mid-range of objective seriousness for this offence.

Subjective circumstances.

12. The offender is 37 years old. He was born in Malaysia and is one of four children. His father is deceased. He has a positive relationship with his mother. He commenced work at a young age but his upbringing was otherwise positive.

13. The offender’s wife and young son live in Malaysia. The offender reported to the author of the pre-sentence report that following his arrest his wife has filed for divorce, largely because Malaysian culture considers the arrest to be a serious disgrace to the family. However, he remains in regular phone contact with his wife and son. He has a large extended family and is likely to suffer considerable opprobrium from that wider family if his offending becomes known to them.

14. He completed school in Malaysia to the end of Year 9 and then entering the workforce. He reported consistent employment within the hospitality industry.

15. The offender came to Australia in 2014 for a holiday. He liked it so he initially enrolled in an accounting course, which he did not complete. In order to be able to stay in Australia, he then enrolled in English language course. As a result of enrolling in these courses, he has been in Australia since 2014 on a student visa. He had ambitions of being able to stay in Australia permanently.

16. While he had been employed in restaurants in the months prior to his arrest, that work had dried up as a result of the COVID-19 pandemic.

17. The offender admitted to the author of the pre-sentence report that he had started using methylamphetamine six months before entering custody. He used funds from selling the drug both to support his habit and for his basic needs including rent.

18. Prior to his arrest he lived in rental accommodation. The Alexander Maconochie Centre received a Request to Hold in Immigration Detention at the End of Custody letter in respect of the offender. This means that when the offender exits custody, he will be released into the custody of the Department of Immigration and Border Protection and is likely to be deported to Malaysia.

19. The author of the pre-sentence report assessed the offender as being at a medium-low risk of general reoffending. Criminogenic risk factors relate to his unemployment, leisure and recreation, lack of accommodation, companions and illicit drug use. Protective factors include his stable mental health and his consistent work history. The author expressed the view that the offender appeared to have lived a relatively pro-social life prior to commencing using drugs six months before the offence. I observe that the risk factors identified by the author of the pre-sentence report are largely attributable to the offender being in a foreign country, without adequate work at the time of the offending and having no other source of income. They are therefore factors which are able to be changed. Criminal history

20. The offender has no prior criminal history.

Plea of guilty

21. The offender pleaded guilty to the offence following committal for trial, but before a trial date was set. He is entitled to a discount of between 15 and 20 percent on account of this plea of guilty. Counsel for the offender submitted and the Crown agreed that having regard to the negotiations between the parties, the plea should be treated as an early one and I will therefore allow a discount of approximately 20 percent.

Time in custody

22. The offender has spent 441 days in custody for this offence since his arrest on 8 March 2021.

Consideration

23. As I have indicated, the offender is to be treated as a user/dealer. Whilst at a relatively low level of the drug supply chain, it is nevertheless an indispensable part of the supply of illicit drugs. General deterrence is a very significant sentencing consideration. The nature of the offending and the need for general deterrence indicate that a custodial sentence is required.

24. His personal circumstances at the time of the offending provide some explanation in relation to his offending conduct. It is notable that he has no criminal history. I recognise that as a result of the offending, there is a real prospect that he will be deported.

25. The Crown’s written submissions made reference to a number of comparable cases: R v Khoder (No 2) [2020] ACTSC 76; R v Cichacz [2022] ACTSC 28; R v Brown [2019] ACTSC 59; R v Hyde [2017] ACTSC 337 and R v Tran [2014] ACTSC 368. For quantities of methylamphetamine ranging from 9 g through to 43 g and various other circumstances, these cases indicated starting points for sentences from 20 months down to 12 months.

26. In my view, the starting point in this case is a sentence of 12 months’ imprisonment reduced to nine months and 15 days on account of the plea of guilty. Having regard to the fact that the offender has spent 441 days in custody prior to sentence, this sentence will be served by full-time detention and backdated to the date that he went into custody, namely 8 March 2021.

Orders

27. The order of the Court is:

28. On the charge of trafficking in a controlled drug namely methylamphetamine (CC2021/2673) the offender is convicted and sentenced to imprisonment for nine months and 15 days commencing on 8 March 2021 and ending on 22 December 2021.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 1 June 2022